Written By ESR News Blog Editor Thomas Ahearn
On September 21, 2020, the Second Circuit Court of Appeals for the Western District of New York affirmed the dismissal by a district court’s judgment in a 2 to 1 decision of a class action lawsuit that claimed a company’s refusal to hire ex-offenders with criminal convictions had a discriminatory impact on Black job applicants since they are arrested and incarcerated at rates higher than Caucasians relative to their share of the U.S. population.
Plaintiffs in Mandala and Barnett v. NTT Data, Inc. are African-American men who were hired at a technology services provider before their offers of employment were revoked due to past criminal convictions. Citing national statistics showing that African Americans are arrested and incarcerated at higher rates than whites, Plaintiffs brought a Title VII of the Civil Rights Act of 1964 disparate impact lawsuit against their would-be employer.
In 2017, Plaintiffs Mandala and Barnett applied for positions at Defendnat NTT Data, Inc. After both were offered jobs, a criminal background check uncovered that both had been convicted of felonies and NTT quickly withdrew its offers of employment. Members of the NTT recruitment team indicated that “NTT had a policy not to hire persons with felonies on their records” and that both were ineligible because of their felony convictions.
In August 2018, Mandala and Barnett filed a class action complaint against NTT that claimed the company violated Title VII – a federal statute that prohibits employment discrimination based on race, color, religion, sex, and national origin – as well as several New York State anti-discrimination laws, with its policy not to hire “individuals with certain criminal convictions including felonies (or similar criminal classifications).”
In July 2019, a district court dismissed the complaint for failure to state a claim. The court concluded that the national statistics on which the Plaintiffs relied were “inadequate to show a relationship between the pool of [NTT] applicants who are Caucasian versus African Americans and their respective rates of felony convictions.” And without any remaining federal claims, the district court dismissed the complaint in its entirety.
The Plaintiffs appealed but the Second Circuit affirmed the district court’s judgment: “While national statistics may be used to advance a disparate impact claim if there is reason to believe that the general population is representative of the qualified applicant pool subject to the challenged policy… Plaintiffs have provided no basis on which to presume that their proffered statistics are representative of the applicant pool in question.”
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